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Mayor Rob Ford asks judge to keep him in office pending appeal

If Superior Court Justice Gladys Pardu refuses to grant Ford a stay, he will no longer be mayor as of Tuesday.

Toronto Mayor Rob Ford addresses reporters at City Hall on Nov. 27. (Chris Young / THE CANADIAN PRESS)

By Daniel DaleUrban Affairs Reporter

Wed., Dec. 5, 2012

Mayor Rob Ford will be forced to leave office early next week unless he wins in court on Wednesday.

Lawyer Alan Lenczner will ask Superior Court Justice Gladys Pardu to let Ford keep his job until his appeal is decided upon sometime this winter.

If Pardu refuses to grant the stay, Ford will no longer be mayor as of Tuesday, Deputy Mayor Doug Holyday will take over on a temporary basis, and council will have to declare the seat vacant, then decide within 60 days whether to call a byelection or appoint a successor.

But Ford’s appeal will proceed — and a nightmare scenario will become highly-unlikely-but-conceivable: Ford could be given his seat back by the appeal court after someone else is already sitting in it.

“Rob Ford has brought us many firsts in his reign as mayor of the city, and this is another one,” said Ryerson University politics professor Myer Siemiatycki.

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Ford was booted from office by Superior Court Justice Charles Hackland last Monday over a violation of the Municipal Conflict of Interest Act.

If there is no stay, Hackland’s ruling takes effect 14 days after its release. The city’s legal department could not explain whether that means Ford would have to depart Monday morning or Tuesday at midnight.

Lenczner must persuade Pardu the case meets a three-part test: that there is a serious issue to be tried on appeal; that Ford would suffer “irreparable harm” without a stay; and that the “balance of convenience,” including the public interest, is on Ford’s side.

Though a stay of a removal order would be unusual, possibly unprecedented, legal experts believe Ford is likely to be granted one, in part because of the complications that could arise if he is not.

“To me it just seems a no-brainer that the court would say, ‘Let’s maintain the status quo for now.’ On those three tests, I can’t believe that Ford would not win,” said Toronto municipal lawyer John Mascarin, of the firm Aird and Berlis. A decision, he said, will come very quickly, possibly even in court on Wednesday.

Municipal lawyer Stephen D’Agostino, of Thomson, Rogers, said earlier that he has never seen a stay granted in a conflict case in his 15 years of working on them. But because the appeal has been scheduled for Jan. 7, a mere month away, he now believes a stay is likely in this one.

“The big issues would’ve been, is the mayor trying to rag the puck here and undermine the lower court’s decision? With an early appeal date, those arguments are gone,” D’Agostino said.

Paul Magder, the resident who filed the lawsuit against Ford, announced Monday he would not fight the stay request.

Waterloo municipal lawyer Steven O’Melia, of Miller Thomson, declined to hazard a guess on the outcome, but he said “the tight time frame that has been placed on the appeal” and the fact that Magder is not opposing Ford are both “factors that weigh in favour” of Ford.

A stay would eliminate any possibility of a duelling-mayors crisis. But Councillor Joe Mihevc said “it won’t happen” even if the stay is rejected.

If council chose a byelection, as it very likely would, voting day would probably still be a month or more away when Ford’s appeal is settled.

Mihevc said even the candidate nomination period that precedes the formal campaign likely wouldn’t be completed at that time. If Ford were reinstated by the appeal court, Mihevc said, council would simply “do a U-turn” and cancel the byelection.

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